1. The author of the communication, dated 25
January 1997, is Jan Filipovich, a Lithuanian citizen convicted of
premeditated murder. He claims to be a victim of a violation by Lithuania of
article 14, paragraphs 1 and 3 (c), and article 15, paragraph 1, of the
Covenant. He is represented by counsel. The Covenant and the Protocol
entered into force for Lithuania on 20 February 1992.

THE FACTS AS SUBMITTED BY THE AUTHOR

2.1 On 3 September 1991, the author and Mr. N. Zhuk got into a fight,
following which Mr. Zhuk was found unconscious and taken to the hospital,
where he was not operated on until 5 September and died that same day.
According to the author, the causes of death were trauma to the abdominal
cavity and peritonitis, which developed because of the delay in operating on
Mr. Zhuk.

2.2 The preliminary investigation began in September 1991. The author was
convicted of premeditated murder by the Vilnius District Court on 16 January
1996. [FN1] The author appealed the decision in the same Court, which
dismissed the appeal on 13 March 1996. On 2 May 1996, the Criminal Division
of the Lithuanian Supreme Court rejected the author's application for
judicial review. Subsequently, on 1 July 1996, the Vice-President of the
Supreme Court and the Attorney-General of Lithuania refused to submit an
application for judicial review.

3.1 The author alleges that he is a victim of a violation of the right to a
fair trial, as provided for in article 14, paragraph 1, because neither the
preliminary investigation nor the oral proceedings were unbiased, since no
importance was attached to the results of an investigation conducted by a
commission set up to determine the reason for the delay in the surgical
operation and the diagnostic error. The author states that, if the
investigation's version of events was correct, the only possible charge that
could have been brought was grievous bodily harm, not premeditated murder.

3.2 The author alleges a violation of article 14, paragraph 3 (c), of the
Covenant because, although the investigation began in September 1991, he was
not sentenced until 16 January 1996 and the final decision was handed down
only on 2 May 1996, i.e. four years and eight months after the start of the
proceedings. In his view, this constitutes undue delay.

3.3 The author alleges that there was a violation of article 15, paragraph
1, because the penalty imposed was heavier than the one that should have
been imposed at the time the offence was committed. He states that, in 1991,
the penalty for premeditated murder imposed by article 104 of the Lithuanian
Criminal Code was 3 to 12 years' deprivation of liberty. He was, however,
sentenced under the new article 104 of the Criminal Code, which provides for
5 to 12 years' deprivation of liberty, and he was given a term of 6 years.
He also alleges that the court never stated either in its ruling or in
subsequent decisions that he was convicted under the version of article 104
of the Criminal Code in force since 10 June 1993. [FN2]

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[FN2] The new Lithuanian Criminal Code entered into force in June 1993.
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THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS

(a) Alleged violation of article 14, paragraph 1, of the Covenant

4.1 With regard to article 14, paragraph 1, the State party draws attention
to the Committee's case law and, in particular, the Views of 28 September
1999 relating to communication No. 710/1996 (Hankle v. Jamaica) and the
Views of 9 April 1981 relating to communication No. 58/1979 (Maroufidou v.
Sweden), which stated that it is generally for the domestic courts to review
the facts and evidence in a particular case, unless it can be determined
that the evaluation was clearly biased or arbitrary or amounted to a denial
of justice.

4.2 The State party argues that the Lithuanian courts, i.e. both, the court
of first instance and the appeal court, as well as the Supreme Court,
referred explicitly to the conclusions of the investigating commission. In
particular, the Supreme Court held that the court of first instance had
exhaustively investigated all the material circumstances of the case and had
properly evaluated the evidence, according to the requirements of articles
18 and 76 of the Code of Criminal Procedure. [FN3] The Supreme Court also
reviewed the characterization of the offence under domestic law and
determined that it had correctly been categorized as premeditated murder
within the meaning of article 104 of the Lithuanian Criminal Code.

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[FN3] Article 18 of the Code of Criminal Procedure provides that the court,
the prosecutor, the investigator and the interrogator must take all of the
measures provided for by law to investigate seriously and exhaustively all
circumstances of a particular case and determine aggravating and mitigating
circumstances, as well as incriminating and exculpatory circumstances.
Article 76 of the Code of Criminal Procedure provides that the court, the
prosecutor, the investigator and the interrogator must evaluate the evidence
according to their own beliefs and on the basis of a serious and exhaustive
examination of all the circumstances of the case, in accordance with the law
and legal ethics.
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4.3 In the light of the foregoing, the case does not reveal any irregularity
on the basis of which it may be concluded that there was an improper
evaluation of the evidence or a denial of justice during the author's trial.
Consequently, this part of the communication must be declared inadmissible
under article 3 of the Optional Protocol because it is incompatible with the
provisions of the Covenant.

(b) Alleged violation of article 14, paragraph 3 (c), of the Covenant

4.4 According to the State party, the author based his allegations only on
the duration of the proceedings and did not put forward any other argument
in support of his complaint. The duration of the proceedings cannot itself
give rise to a violation of article 14, paragraph 3 (c), since the Covenant
already explicitly provides for the right to be tried without undue delay.
In addition to putting forward arguments in support of his complaint, the
author must not only indicate exactly how long the proceedings lasted, but
must also refer to the delays attributable to the State party and provide
specific evidence.

4.5 The State party also argues that the author's calculations concerning
the duration of the proceedings are not correct. Specifically, the start of
the relevant period was not in September 1991, but on 20 February 1992, when
the Covenant and the Optional Protocol entered into force for Lithuania.

4.6 Since the author has not provided information on undue delays during the
criminal proceedings, the State party holds that the author has not
substantiated his complaint and that, consequently, this part of the
communication should be declared inadmissible under article 2 of the
Optional Protocol.

(c) Alleged violation of article 15, paragraph 1, of the Covenant

4.7 The State challenges the author's contention that the lack of any
specific reference to the relevant version of article 104 of the Penal Code
in the sentence of the court of first instance indicates a violation of
article 15, paragraph 1, of the Covenant. It recalls that the legality of
the sentence was reviewed by the Lithuanian Supreme Court, which rejected
the author's arguments that the court of first instance had imposed the
wrong penalty, stating that the penalty was imposed in accordance with
article 39 of the Criminal Code. [FN4] This article is in keeping with the
principle that a law introducing heavier penalties is not retroactive. In
recognizing the legality of the penalty imposed in accordance with article
39, the Supreme Court thus also confirmed that this penalty is in conformity
with the principle of non-retroactivity provided for in article 7 of the
Criminal Code.

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[FN4] Article 39 of this Code explicitly states that the court in question
must apply the penalty within the limits set by the article, specifying
responsibility for the crime committed. The court must also take account of
the nature and gravity of the offence and of aggravating or mitigating
circumstances.
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4.8 The State party makes it clear that the Supreme Court also ascertained
that there were no other reasons why the penalty imposed might have been
regarded as heavier than the one which might legitimately have been imposed
for this type of criminal offence in the specific circumstances of the case.
In the present case, there was the aggravating circumstance that the author
was drunk, but there were no mitigating circumstances. Article 104 of the
Criminal Code, which was in force when the author committed the offence,
provided for between 3 and 12 years' deprivation of liberty. The author was
sentenced to a penalty of six years, well within the limits set in that
article.

4.9 In view of the fact that the Supreme Court considered that the penalty
imposed on the author was in keeping with article 39 of the Lithuanian
Criminal Code and bearing in mind the Committee's case law stating that it
is generally for the domestic courts to review the facts and evidence in a
particular case, the State party maintains that the penalty imposed is in
keeping with the prohibition on the imposition of a penalty that is heavier
than the one that was applicable at the time when the offence was committed,
as stated in article 15, paragraph 1, of the Covenant.

THE AUTHOR'S COMMENTS RELATING TO ADMISSIBILITY AND THE MERITS

5.1 In his comments of 20 August 2000, the author argues that, throughout
the proceedings, his right to a defence and to be heard by a court were mere
formalities, as clearly reflected in the court's decision.

5.2 The author's conviction by the Vilnius District Court on 16 January 1996
was based on the fact that the only reasons for Mr. Zhuk's death were the
blows to his head and stomach which the author inflicted, thereby causing
his death. According to the author, the court adopted these conclusions
without any reliable evidence and without having examined the main evidence,
[FN5] since the forensic report stated that the cause of Mr. Zhuk's death
was a trauma to the stomach resulting in peritonitis. The medical report
also stated that Mr. Zhuk was operated on too late, that the injuries which
caused his death were not diagnosed until 30 hours after his arrival at the
hospital and that the doctor, who suspected that there might be injuries to
Mr. Zhuk's stomach, did not take the necessary measures to make a final
diagnosis so that he might be operated on immediately.

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[FN5] According to the author, a forensic medical examination is compulsory
in criminal proceedings, in accordance with article 86, paragraph 1, of the
Code of Criminal Procedure, and is one of the main pieces of evidence (art.
74, para. 2, and art. 85, para. 3).
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5.3 With regard to article 14, paragraph 3 (c), the author agrees with the
State party that the duration of the proceedings should be counted as from
the entry into force of the Covenant, i.e. 20 February 1992, but, even then,
the period would be too long because there were four years and two months
between the entry into force of the Covenant and the date of 2 May 1996.

5.4 Bearing in mind that the evidence was collected during the initial
stages of the investigation and that the forensic medical report was
prepared on 6 September 1991 and, respectively, 1 December 1992, the only
reason for such lengthy proceedings was the unjustified delay by the
investigators in the case in bringing the author before the court.

5.5 Lastly, the author refers to article 15, paragraph 1, of the Covenant
and states once again that he should have been tried in accordance with the
law in force at the time when the offence was committed, whereas, in fact,
the offences for which he was tried were not defined by the law in force
when they were committed. The Vilnius District Court, which heard the case,
took the view that the definition of the offence was in keeping with article
104 of the Criminal Code (premeditated murder), without taking account of
the fact that article 111, paragraph 2, providing for the offence of
grievous bodily harm resulting in death, existed at the time. The author
also maintains that the penalty applicable for that type of offence was
heavier than the penalty applicable at the time the offence was committed.
He states that he disagrees with the State party's observation that, in its
decision of 2 May 1996, the Supreme Court confirmed that the penalty was
applied in accordance with the law in force at the time the offence was
committed.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

CONSIDERATION AS TO THE ADMISSIBILITY

6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the complaint is admissible under the Optional
Protocol to the Covenant.

6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2 (a) of the Optional Protocol. It has
further ascertained that the victim has exhausted domestic remedies for the
purposes of article 5, paragraph 2 (b) of the Optional Protocol. The
Committee also notes that the State party has not contested the
admissibility of the communication under article 5, paragraphs 2 (a) and (b)
of the Optional Protocol .

6.3 With regard to the author's allegations in respect of the violation of
article 14, paragraph 1, the Committee recalls that it is generally for the
courts of States parties, not for the Committee, to review the facts in a
particular case. The Committee takes note of the State party's allegations
that all of the evidence was examined by the Supreme Court. Moreover, the
information available to the Committee and the author's arguments do not
show that the evaluation of the facts by the courts was clearly arbitrary or
amounted to a denial of justice. The Committee therefore takes the view that
the complaint is inadmissible for lack of substantiation under article 2 of
the Optional Protocol.

6.4 With regard to the author's allegations concerning articles 14,
paragraph 3 (c), and 15, paragraph 1, of the Covenant, the Committee
considers that these complaints have been sufficiently substantiated for
purposes of admissibility. Accordingly, it will consider this part of the
communication on the merits in the light of the information furnished by the
parties, in conformity with the provisions of article 5, paragraph 1, of the
Optional Protocol.

CONSIDERATION AS TO THE MERITS

7.1 As to the author's allegations that the trial went on for too long,
since the investigation began in September 1991 and the court of first
instance convicted him on 1 January 1996, the Committee takes note of the
State party's arguments that the duration of the proceedings should be
calculated as from the entry into force of the Covenant and the Protocol for
Lithuania on 20 February 1992. The Committee nevertheless notes that,
although the investigation began before the entry into force, the
proceedings continued until 1996. The Committee also takes note of the fact
that the State party has not given any explanation of the reason why four
years and four months elapsed between the start of the investigation and the
conviction in first instance. Considering that the investigation ended,
according to the information available to the Committee, following the
report by the forensic medical commission and that the case was not so
complex as to justify a delay of four years and four months, or three years
and 2 months after the preparation of the forensic medical report, the
Committee concludes that there was a violation of article 14, paragraph 3
(c).

7.2 With regard to the author's allegations that he was sentenced to a
heavier penalty than the one that should have been imposed at the time the
offence was committed, the Committee takes note of the author's allegations
that none of the sentences against him explained which version of article
104 of the Criminal Code had been applied in imposing six years' deprivation
of liberty. However, the Committee also notes that the author's sentence of
six years was well within the latitude provided by the earlier law (3 to 12
years), and that the State party has referred to the existence of certain
aggravating circumstances. In the circumstances of the case, the Committee
cannot, on the basis of the material before it, conclude that the author's
penalty was not meted out according to the law that was in force at the time
when the offence was committed. Consequently, there was no violation of
article 15, paragraph 1, of the Covenant.

8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts as found by the Committee constitutes
a violation of article 14, paragraph 3 (c), of the Covenant.

9. In accordance with article 2, paragraph 3 (a), of the covenant, the State
party is under an obligation to provide the author with an effective remedy,
including compensation. The State party is also under an obligation to
ensure that similar violations do not occur in future.

10. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant and that, pursuant to
article 2 of the Covenant, the State party has undertaken to ensure to all
individuals within its territory or subject to its jurisdiction the rights
recognized in the Covenant and to provide an effective and enforceable
remedy when a violation has been established, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to the Committee's Views. The State party is also
requested to publish the Committee's Views.

__________________________

[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]